Citation Nr: 9927760
Decision Date: 09/27/99 Archive Date: 10/05/99
DOCKET NO. 98-12 261A ) DATE
)
)
THE ISSUE
Whether a June 1998 Board of Veterans' Appeals (Board)
decision denying service connection for a pineal gland cyst
should be revised or reversed on the grounds of clear and
unmistakable error (CUE).
REPRESENTATION
Moving Party Represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
INTRODUCTION
The veteran had active service from October 1983 to May 1986.
This matter comes before the Board based on a CUE motion as
to a Board decision of June 15, 1998, which denied service
connection for a pineal gland cyst. At the time of the
Board's denial of the moving party's motion for
reconsideration in January 1999, the Board advised the moving
party that it would also consider her August 1998 motion as a
request for revision of the Board's June 15, 1998 decision on
the grounds of CUE.
Thereafter, in a letter dated April 12, 1999, the Board
indicated that in view of the new regulations concerning CUE,
it would not consider the motion for reconsideration as a CUE
motion unless the moving party informed the Board in writing
within 60 days of the date of the April 1999 letter that she
wished for the Board to do so. In this letter, the Board
expressly advised the moving party that the regulations
contained "very specific rules for what you must do to
prevail," and warned her that once a motion for review on
the basis of CUE was finally denied the Board would not
consider another CUE motion on that decision. The Board
strongly urged the moving party to obtain a representative.
The record reflects that while the Board received a letter
from the moving party in April 1999, which the Board found to
be unclear as to whether the veteran wanted her motion for
reconsideration to be treated as a CUE motion, in response to
a May 24, 1999 letter seeking further clarification of the
veteran's intentions, a June 18, 1999 letter from the veteran
specifically indicated that she wished her "CUE motion to be
considered." Accordingly, as the moving party made specific
reference to CUE in her communication to the Board after
being advised that she must specifically advise the Board
that she wished to proceed with a CUE review, the Board finds
that she has authorized the Board to proceed with review of
her motion for CUE.
The Board observes that the moving party's representative has
submitted a September 1999 brief in support of the moving
party's motion for CUE. The Board also notes that additional
evidence has been associated with the claims folder that was
not of record at the time of the subject Board decision in
June 1998. Rule 1405(b), which is currently found at 64 Fed.
Reg. 2134, 2140 (1999), and is to be codified at 38 C.F.R.
§ 20.1405(b), provides that no new evidence will be
considered in connection with the disposition of a motion
based on CUE. Consequently, the Board is precluded from
considering any evidence submitted after the subject Board
decision in reaching its decision as to the matter currently
under review.
FINDING OF FACT
The June 1998 Board decision which denied service connection
for a pineal gland cyst, correctly applied existing statutes
and/or regulations and was consistent with and supported by
the evidence then of record.
CONCLUSION OF LAW
The June 1998 Board decision did not contain CUE. 38
U.S.C.A. § 501(a), 7111 (West 1991 & Supp. 1999); 64 Fed.
Reg. 2134 (1999) (to be codified at 38 C.F.R. § 20.1403).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Background
Rule 1403, which is currently found at 64 Fed. Reg. 2134,
2139 (1999), and is to be codified at 38 C.F.R. § 20.1403,
relates to what constitutes CUE and what does not, and
provides as follows:
(a) General. Clear and unmistakable error is
a very specific and rare kind of error. It
is the kind of error, of fact or of law, that
when called to the attention of later
reviewers compels the conclusion, to which
reasonable minds could not differ, that the
result would have been manifestly different
but for the error. Generally, either the
correct facts, as they were known at the
time, were not before the Board, or the
statutory and regulatory provisions extant at
the time were incorrectly applied.
(b) Record to be reviewed.--(1) General.
Review for clear and unmistakable error in a
prior Board decision must be based on the
record and the law that existed when that
decision was made.
(2) Special rule for Board decisions issued
on or after July 21, 1992. For a Board
decision issued on or after July 21, 1992,
the record that existed when that decision
was made includes relevant documents
possessed by the Department of Veterans
Affairs not later than 90 days before such
record was transferred to the Board for
review in reaching that decision, provided
that the documents could reasonably be
expected to be part of the record.
(c) Errors that constitute clear and
unmistakable error. To warrant revision of a
Board decision on the grounds of clear and
unmistakable error, there must have been an
error in the Board's adjudication of the
appeal which, had it not been made, would
have manifestly changed the outcome when it
was made. If it is not absolutely clear that
a different result would have ensued, the
error complained of cannot be clear and
unmistakable.
(d) Examples of situations that are not clear
and unmistakable error.--(1) Changed
diagnosis. A new medical diagnosis that
"corrects" an earlier diagnosis considered
in a Board decision.
(2) Duty to assist. The Secretary's failure
to fulfill the duty to assist.
(3) Evaluation of evidence. A disagreement
as to how the facts were weighed or
evaluated.
(e) Change in interpretation. Clear and
unmistakable error does not include the
otherwise correct application of a statute or
regulation where, subsequent to the Board
decision challenged, there has been a change
in the interpretation of the statute or
regulation.
(Authority: 38 U.S.C.A. § 501(a), 7111).
The Board further notes that with respect to the final
provisions of the regulations pertaining to the adjudication
of motions for revision or reversal of prior Board decisions
on the grounds of CUE, the definition of CUE was based on
prior rulings of the United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999, hereafter "the Court").
More specifically, it was observed that Congress intended
that the Department of Veterans Affairs (VA) adopt the
Court's interpretation of the term "CUE." Indeed, as was
discussed in the notice of proposed rulemaking (NPRM), 63
Fed. Reg. 27534, 27536 (1998), the sponsor of the bill that
became the law specifically noted that the bill would "not
alter the standard for evaluation of claims of CUE." 143
Cong. Rec. 1567, 1568 (daily ed. April 16, 1997) (remarks of
Rep. Evans, sponsor of H.R. 1090, in connection with House
passage).
Therefore, the Board is permitted to seek guidance as to the
existence of CUE in prior Board decisions based on years of
prior Court decisions regarding CUE, such as Fugo v. Brown, 6
Vet. App. 40 (1993).
The Board also notes that the final regulations governing the
adjudication of CUE motions additionally provides in Rule
1404(a) (64 Fed. Reg. 2134, 2140 (1999), to be codified at 38
C.F.R. § 20.1404(a)) that:
A motion for revision of a decision based on
clear and unmistakable error must be in
writing, and must be signed by the moving
party or that party's representative. The
motion must include the name of the veteran;
the name of the moving party if other than
the veteran; the applicable Department of
Veterans Affairs file number; and the date of
the Board of Veterans' Appeals decision to
which the motion relates. If the applicable
decision involved more than one issue on
appeal, the motion must identify the specific
issue or issues, to which the motion
pertains. Motions that fail to comply with
the requirement set forth in this paragraph
shall be dismissed without prejudice to
refilling under this subpart.
In Rule 1404(b) (64 Fed. Reg. 2134, 2140 (1999), to be
codified at 38 C.F.R. § 20.1404(b)), it is further stated
that:
(b) Specific Allegations Required: The
motion must set forth clearly and
specifically the alleged CUE, or errors, of
fact or law in the Board decision, the legal
or factual basis for such allegations, and
why the result would have been manifestly
different but for the alleged error. Non-
specific allegations of failure to follow
regulations or failure to give due process,
or any other general, non-specific
allegations of error, are insufficient to
satisfy the requirement of the previous
sentence. Motions which fail to comply with
the requirements set forth in this paragraph
shall be denied. (Emphasis added.)
In the June 1998 decision, the Board found that that the
service medical records were negative for a pineal gland cyst
and that the cyst was not initially discovered until 1991,
approximately five years after discharge from service, and
beyond the one-year period provided by law during which a
disorder such as a brain tumor would be presumed to have
begun during service. The Board also noted that the
veteran's lay assertions to the effect that a pineal gland
was related to service or to a service-connected disability
was neither competent nor probative of the issue in question,
and that since the veteran was not a medical expert, she was
not competent to express an authoritative opinion regarding
either her current medical condition or any questions
regarding medical causation in her hearing testimony or her
written contentions. Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
The Board therefore found that the veteran had neither shown
incurrence or aggravation of a disease or injury in service
or a nexus between the in-service injury or disease and the
current disability based on the elements of a well-grounded
claim as set forth in the case of Caluza v. Brown, 7 Vet.
App. 498 (1995), and that the veteran's claim was not well-
grounded because she had not submitted evidence sufficient to
justify a belief by a fair and impartial individual that her
claim for entitlement to service connection for a pineal
gland cyst was plausible. See 38 U.S.C.A. § 5107(a) (West
1991).
In a brief in support of the veteran's CUE motion, the
veteran's representative asserts that it was CUE for the
Board to fail to obtain a medical advisory opinion with
respect to the issue of entitlement to service connection for
a pineal gland cyst, and that the Board otherwise failed to
discharge the duty to assist. The veteran's representative
also maintains that the Court's standards for determining
well groundedness are "rather stringent," and that, indeed,
the standard set out in Caluza v. Brown, supra. is "contrary
to the liberal benefits scheme established by Secretary of
Veterans Affairs." The representative appears to argue that
the decision of the United States Court of Appeals for the
Federal Circuit in Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998) set out policy considerations with regard to the
adjudication of veterans' claims that serve to effectively
overrule Caluza, and therefore the Board should not apply or
follow Caluza. The representative further maintains that the
Board's June 1998 decision contained unidentified errors of
law, including unidentified errors regarding well
groundedness, that there were insufficiencies in the Reasons
and Bases for the decision, and that the cumulative weight of
the evidence required a different result.
II. Analysis
The moving party was provided with CUE regulations in April
1999, which advised the moving party of the specific filing
and pleading requirements governing motions for review on the
basis of CUE. The Board finds that the moving party's CUE
motion of August 1998 and her later correspondence of April
and June 1999, contain no more than general assertions of CUE
with respect to the Board decision of June 1998.
In addition, to the extent that the moving party's
representative maintains in September 1999 that the Board
failed to obtain a necessary medical opinion, the Secretary's
failure to fulfill the duty to assist has been specifically
precluded as a basis for CUE in Rule 1403(d)(2). Similarly,
with respect to the assertion that the Board failed to
consider the cumulative weight of the evidence, the Board
must point out that disagreement as to how the facts were
weighed or evaluated has also been specifically precluded as
a basis for CUE under Rule 1403(d)(3). To the degree the
representative is arguing that the Board committed error by
following a controlling precedent decision of the Court, the
Board finds this is not a valid claim of CUE. The Board can
identify nothing in Hodge, supra. that overturns Caluza. In
fact, the Federal Circuit has expressly adopted the standards
set out in Caluza in Epps v. Gober, 126 F.3d 1464, 1468 (Fed.
Cir. 1997) (Where the Federal Circuit quoted with approval
the standard for a well-grounded claim set forth in Caluza,
as cited in Epps v. Brown, 9 Vet. App. 341, 343-44 (1996).)
The moving party and her representative point to no specific
evidence that undebatably demonstrated the veteran's
entitlement to service connection for a pineal gland cyst.
As far as any other basis for CUE is concerned, the Board
must emphasize that in a CUE motion, it is incumbent upon the
moving party to set forth clearly and specifically the
alleged CUE, and that non-specific allegations of failure to
follow regulations or failure to give due process, or any
other general non-specific allegations of error, are
insufficient to satisfy this requirement under Rule 1404(b).
Moreover, motions which fail to comply with the requirements
set forth in Rule 1404(b), shall be denied. Rule 1404(b).
Consequently, in view of the fact that the moving party has
failed to comply with Rule 1404(b), and that no other
allegation of CUE is supported by the record as noted above,
the Board has no alternative but to deny the moving party's
motion for CUE.
ORDER
The June 1998 Board decision did not contain CUE and the CUE
motion is denied.
Richard B. Frank
Member, Board of Veterans' Appeals